Mallory v. Edgar

I agree to the award of a new trial in this case solely because of circumstances shown to have transpired that apparently caused the jury to act on consideration outside of the evidence in fixing the amount of damages allowed in this case, particularly the knowledge that was brought to the jury's attention of other verdicts returned in the lower court in earlier cases awarding higher amounts.

The common law holds high regard for the conservation of the marriage relation, not alone for the benefit of the parties themselves, but for the State whose citizenship is affected adversely by acts and doings having a tendency to destroy the marital relation or impair its usefulness. Accordingly, the common law authorizes a husband to maintain an action against a third person for criminal conversation with his wife, her consent to the illicit relationship in no way affecting the husband's right to the action. The essential injury to the husband in such action is deemed to consist of the defilement of the marriage bed in the invasion of the husband's exclusive right to marital intercourse with his wife, and particularly to beget his own children. The loss of consortium and of comfort in the wife's society are but elements of the general damage inflicted upon the husband and upon society as a whole, when a third person either induces a wife to violate her conjugal duties or aids, assists orabets her in so doing when she is voluntarily thus inclined. The alienation of affections in a case where criminal conversationwith the wife is established, is consequently relegated to a position of secondary importance by being regarded in law as a mere matter of aggravation. Evans v. O'Connor, 174 Mass. 287, 54 N.E. Rep. 557, 75 A.S.R. 316.

In cases not involving criminal conversation with the wife the gravamen is the alienation of the wife's affections from malice or other improper motives, and the injury is principally one of induced loss or impairment of consortium usually accompanied by a deprivation to the husband of the wife's society and assistance, rather than an actual invasion of the marital sanctity itself.

An action for criminal conversation is essentially one for trespass vi et armis and draws to it the application of all the rules of law usually applicable to such class of tort actions. Thus, the wife's consent to the act will not be allowed as a defense any more than the wife's consent would excuse an assault and battery on her person resulting in a loss to the husband of his wife's services or society. Nor is it any defense, except as affecting the damages, that the husband injured by an act of criminal conversation with his wife on the part of a third person, had, prior to the defendant's wrongful act, completely lost the affections of his wife even by his own misconduct or ill treatment of her. Dallas v. Sellers, 17 Ind. 479, 79 Am. Dec. 489; Gross v. Grant, 62 N.H. 675, 13 A.S.R. 607; Lewis v. Roby,79 Vt. 487, 65 Atl. Rep. 524, 118 A.S.R. 984.

Nor is it any justification to a suit for criminal conversation that the husband has himself been guilty of illicit intercourse with other women, nor can the action be defended on the ground that the plaintiff husband is a dissolute character. Matusak v. Jilczewski, 295 Pa. 208, 145 Atl. Rep. 94, 68 A.L.R. 557, and note. So much is the protection of the law extended to the preservation of the marital bed from defilement by acts of criminal conversation that it has been held that an agreement by a husband injured by such an offense to settle a claim against the guilty party under a covenant that the husband will do nothing whereby the matter will acquire any publicity whatever, has been held to be against public policy. McKenzie v. Lynch,167 Mich. 583, 133 N.W. Rep. 490, Ann. Cas. 1913A 704, 36 L.R.A. and note.

As will be seen from a review of the precedents the right to sue for criminal conversation is an action of ancient common law origin, and is designed as much, if not more, to discourage such conduct on the offender's part in the conservation of the public interest, as it is to indemnify the wronged husband for the violation of his right to consortium, loss of services, injury to social position by being publicly identified as a cuckold, impairment of family honor or mental suffering. Indeed, the offense, when committed, is against the family and the State, as much as a private wrong to the outraged husband, and for this reason, it has been universally held that many of the excuses which will support a defense to an action for alienation of affections alone, will have no influence as a justification in acriminal conversation suit.

In Vanvaks v. Chantly, 107 Fla. 647, 145 Sou. Rep. 838, Chantly sued Banvaks for alienation of his wife's affections and for criminal conversation with her. The judgment for $25,000.00 damages rendered the husband in that case was affirmed without serious debate among the Justices of this Court, mainly because of the element of criminal conversation established on defendant's part as a basis for the recovery there awarded. A precis of that case would be that where an adventurous marauder of wifely affections mistakes adultery for chivalry, he should expect to assume the cost of his intrepreneurship in amorous dilettantism by paying the price of the tunes he may have piped for his personal gratification.

The record in this case presents a state of facts all too commonly observed nowadays in a godless age where Sybaritic pleasure appears to be the principal indoor sports of the vacationing playboy of wealth and position while luxuriating away his hours in a balmy clime noted for its conduciveness to enjoyment of pleasures of the flesh as well as of the spirit. That fact, however, does not alter the application of long established rules of law which in the course of their administration operate to restrain if not entirely inhibit acts of criminal conversation with other men's wives that are likely to be productive of violence and disorder as well as subversive of general family integrity, whatever the sexual propensities or looseness of the wife may be.

Long prior to the adoption of the Constitution there was an established right of action in cases of criminal conversation and Section 4 of the Bill of Rights protects the injured spouse in the assertion of a legal right to redress for the injury done. Necessarily all such actions are of a bizarre nature, but, like prosecutions for crime, they serve to furnish a forum for the infliction of punishment in the form of civil damages for a wrong that in the Southland is usually only brought to court when the outraged husband is tried for the homicide of his wife's paramour.

I concur in the conclusion to reverse the judgment for a new trial on the first assignment of error.